It remains unclear exactly when or how the law will be changed, but the mere fact that change is in the wind has raised concerns about the possibility of a loving mother or father someday being charged with assault or child abuse for administering a simple slap on the hand or bottom.
“In the home situation, I think it’s awfully overdone to say minor reprimands should be illegal,” said Moira McQueen, executive director of the Canadian Catholic Bioethics Institute.
“Or to put a label on a parent either driven to distraction by a kid not old enough to listen to reason, or holding a kid very closely to prevent him from damaging himself or someone else. It could look very violent to other people, but necessary for the situation.”
Section 43 of the Criminal Code currently permits parents and teachers to use reasonable force in disciplining children. It reads: “Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.”
That law has upheld by the Supreme Court in 2004, provided the punishment constituted “minor corrective force of a transitory and trifling nature” and excluded blows or slaps to the head or the use of an instrument such as a belt or paddle.
The move to amend the law follows Prime Minister Justin Trudeau’s promise to implement every one of the 94 calls to action in the Truth and Reconciliation Commission’s report on the legacy of Indian Residential Schools. Under the heading of “Education,” call No. 6 seeks repeal of Section 43 of the Criminal Code, but exactly how the recommendation will be reflected in legislation remains unclear.
Section 43 has withstood 10 attempts in Parliament to abolish it.
“The Government remains committed to implementing all of the Truth and Reconciliation Commission’s 94 calls to action,” said Andrew Gowing, a spokesman for Canada’s Attorney General Jody Wilson-Raybould in an email. “At this point, however, it would be premature to comment on the potential legislative or policy approaches that may be taken to address this particular issue.”
If the new law bans the use of all physical force, “it could be very dangerous in some situations,” McQueen said.
She said that a special e ducation teacher she knows has often been “kicked and pummelled by a fairly strong young fellow with disabilities.” A teacher should be allowed to use reasonable force to restrain someone in self defence or to prevent them from doing potential harm to themselves. This is different from using the strap as a punishment, she added.
The word “reasonable” allows people to work out how in different situations to prevent harm to the students and to the teachers, she said. Sometimes a “reasonable spank may be the best thing, even to bring someone to his or her senses,” she said. But reasonable force does not mean corporal punishment, she added.
“I think that it is dangerous, I do have a problem with that, especially if people are angry. There should be a balance.”
Last February, Pope Francis raised the issue of spanking in one of his weekly general audiences. He seemed to condone the practice in some situations, a stance that raised some eyebrows after he condoned a case in which a father administered discipline in a way that he felt respected the child’s dignity.
“One time, I heard a father in a meeting with married couples say, `I sometimes have to smack my children a bit, but never in the face so as to not humiliate them,’” Pope Francis said. “He has to punish them but does it justly and moves on.”
The Church does not have an official position on spanking. It certainly rejects the right of anyone to inflict physical or emotional injury on a child, but it also says parents are obligated to instil discipline in the family home and ensure children learn right from wrong. Within the parameters of a loving family environment, it leaves the question of how to discipline a child up to parents.
Diane Watts, a researcher with REAL Women of Canada, said Section 43 of the Criminal Code is not really a debate about whether spanking is good or bad.
“The section is concerned about protection of parents and teachers from being criminalized, from being charged with assault for using reasonable force in directing, teaching, correcting children in the home and schools and in playgrounds and in public,” Watts said. “There are situations that call for intervention with physical force, such as removing a child from the situation.”
Institute of Marriage and Family Canada (IMFC) executive director Andrea Mrozek said that she is “no fan of spanking” but her organization opposes removing Section 43 because it could lead to “state intrusion and infringement on the family and will, in effect, criminalize very good parents.”
“What we know from the research, there is a very clear distinction to be made between abuse and spanking being used as a disciplinary tool,” she said. Eliminating Section 43 raises “a risk that good parents will be getting visits from the Children’s Aid Society,” she said.